Massachusetts Laws

Ask the Waitress!

This is from Massachusetts:

Is it legal in MA to require waitstaff to tip out a certain percentage to bartenders, busses and food runners?   Management requires we let them see our sales before we cash out!  Also, at this restaurant we are required to claim 14% of our sales as tips, if not its a write up, sometimes we don't make that. We tip out 4% of sales to support staff, in order to claim 14% of sales we need an average of 18%, that doesn't always happen. Can you help me find the answers?

 I'll do my best to help you find the answers. :-)

Tip Outs

"Tip out" is restaurant jargon for a waitress paying a percentage of her sales or tips to other restaurant staff. This is legal, and the legal language is "valid tip pool." On the federal level, a valid tip pool is one in which FOH workers, and FOH only, get tip outs. Bartenders, bussers, and food runners are FOH, so this is legal. (If you have to tip out a dishwasher or cook, it is against federal law.)

This from Mass. Attorney General Martha Coakley:

Under Mass. General Laws, c.149, s.152A, an employer can require service employees to pool their tips only with other service employees, service bartenders, or wait staff. Total proceeds of a tip or service charge contained in a bill must be remitted only to wait staff employees or service bartenders in proportion to the service provided by those employees. Under no circumstances may management employees or owners receive any portion of their employees' tips.

Incidentally, notice that in the state of Massachusetts, managers may not dip their hands into the tip till. This is relevant to my last two posts, Managers Taking Tips and Managers Taking Tables.

Sales

Theoretically, a tip out is a percentage of your tips earned. I have seen so many waitresses skim off the top of their tip outs that I understand why owners and managers require a percentage of sales, not tips. It sucks, because if you have a bad night you end up tipping our a higher percentage of your tips (make sense?)

I know of no law regulating what percentage wait staff may be required to tip out. Coakley's language above, "Total proceeds of a tip or service charge contained in a bill must be remitted only to wait staff employees or service bartenders in proportion to the service provided by those employees," seems to allow managers to decide what is fair. I think it would have to be an especially obvious problem, such as the bartender sitting in the back room all night but then receiving a tip out for making drinks, which he didn't make, to argue that the tip out was not in proportion to service rendered.

Anyway, it is legal for your employer to say "four percent of sales go to other FOH employees." It is legal for them to look at your sales to ensure that your tip out is the correct amount.

Claiming Tips and Tip Credits

It is illegal to require employees to claim more money than they made. This is where your employer is guilty of wage theft.

In most states, Massachusetts included, employers may take a tip credit. The Mass. minimum wage is $8 per hour, but for tipped employees it is only $2.63. You may be paid like a tipped employee if you make at least $20 per month in tips.

HOWEVER: Your tips and wage must equal minimum wage! If not, your employer owes you more money.

In the state of Mass., the tip credit is as much as $5.37 per hour.
$8 - $2.63 = $5.37.

You have to have made minimum wage AFTER paying tip outs, not before. So, if you just make $8 per hour including tips, and then have to tip out other employees, guess what? Your employer owes you money OR is guilty of wage theft.

That is why you are being required to lie about your tips earned. Your employer is breaking the law and is guilty of wage theft.

Write Ups

Okay, that is just nasty. It is also a rather obvious threat. So, you make sixteen percent on average on a specific shift. You must pretend you earned an additional two percent, or you get written up as if you did something wrong. Write ups are for things you do wrong that you should know better, like passive-aggressively sighing at customers or ringing in food wrong all night.

The attitude is "if you didn't make at least eighteen percent, you are not a good waitress/waiter and shouldn't be working here, anyway." We all know if does not work that way. A slow shift and Springs1 in your section, you are going to be paying taxes on money you didn't make.

Or maybe you have a bad night because of you. It happens. Every human being in any job will have some bad times. I've worked with managers who sucked most of the time and they didn't have their pay docked. Amazing how long some people last in jobs they are no good at.

Whistleblowing

Be careful. As an at will employee, you may be fired for any reason or no reason (as long as its not a protected reason, such as discrimination.) If you complain to a manager about wage theft, you may find yourself off of the schedule.

Mass. does have a no retaliation law; you may find it towards the bottom of this web page. If you contact the Mass. Department of Labor with a complaint, you are afforded protection against retaliation. If you complain to the Department of Labor, then lose your job, you would have legal complaint re: retaliation.

Good luck.

Please remember: I'm not a lawyer, I'm just a stupid waitress! ;-) None of this is legal advice. When people ask me questions, I research the answers to the best of my ability and include my resources in my answers. Thank you.

Managers Taking Tips

Received a great comment on my last post, Managers Taking Tables: 

I feel the only way it would be acceptable for a manager to accept tips is if they are taking complete care of the table, as in, you're too busy to help that table at all, so they do all of the work, and they're not just assisting you. Even then, in my experience, most managers that have had to take a table or 2 have enough class to ring it under the server's number, and give them the tip from it (and I work for a small business, btw). I have had servers try to tip me out when I've been managing (as a supervisor, with a slightly higher hourly pay, not salary) and had to jump in and help out, and I refuse them on principal.

 I was friends with a girl who was a salaried manager at a local counter/sit down restaurant. She always partook in the tips the counter girls were making because she helped out during the lunch rush. I questioned her on that because I thought it was unfair, and her response was "well, I helped, why shouldn't I get tipped?" My response was "because you're a salaried manager, and making sure things run smoothly is part of your job." Not to mention that as they were counter tips, we're talking about maybe 40-50 dollars being divided up between 2 counter girls, and a manager. Seriously, you need that extra 15 bucks so badly? More than the 2 girls making minimum? I lost a lot of respect for her after that, and always wondered how the other girls there must have felt about her dipping into the pot like that.

Well said. I attempted to explain, in my last post, the possible point of view of the hostess/manager. I appreciate my readers on the floor responding and reminding me that just because it is legal does not make it right.

Federal Law

The U.S. Department of Labor's Fact Sheet #15 is an awesome resource for information regarding federal tip laws. It clearly states that an employer may not retain any employee tips for any reason other than a valid tip pooling arrangement. A valid tip pooling arrangement is when wait staff are required to share tips with other FOH employees, such as bartenders and bussers.

Managers, however, are not mentioned. A manager playing the role of hostess or bartender is performing FOH work that is normally allowed to "participate in tip pools." A manager who takes a table is not breaking federal law if she pockets the tip.

State Laws

Sometimes states enforce stricter laws than the federal government. In Colorado, managers participating in tip pools nullifies the tip credit. That means that if the manager dips his hand into the tips, the owner owes you full minimum wage.

Before everybody moves to Colorado, I got this from the same page on the Colorado's Department of Labor website:

Colorado wage law allows for an employer to assert claim to, right of ownership in, or control over tips only if: the employer posts a printed card at least 12 inches by 15 inches in size with letters one-half inch high in a conspicuous location at the place of business. The card must contain a notice to the general public that all tips or gratuities given by the patron are not the property of the employee, but instead belong to the employer. 

Sounds like they are saying you can break federal law as long as you tell people you are breaking federal law. Yuck.

In California, Labor Code Section 351 prohibits employers and their agents from taking employee tips. That sounds like it means managers...? In California, there is not tip credit so wait staff are paid full minimum wage. Tips belong to the employees, but they may be required to pay into valid tip pools. California has a nice question-and-answer sheet here. 

Grass is Always Greener

Thinking back over my own experiences over the years, I see a situation in which the grass is always greener on the other side of the fence. I also see that waitresses are in an extremely weak position due to lack of laws protecting them and a greater culture that does not respect them as deserving earners. 

Waitresses make (in most states) less than minimum wage. Even in states with no tip credit, you can't live on minimum wage, so wait staff is a low-paid job. Tips received bring the hourly rate of a waitress or waiter up. Because of the reliance on tips, a waitress' income varies from month to month, and she is well-advised to save her money during the busy times so she can survive during the slow times. 

Managers are, in many cases, salaried. The idea is that they are paid a fixed amount, consistent from month-to-month, to make the restaurant run smoothly. 

So, managers look over the fence and see waitresses making "soooo much money!" for doing non-managerial work, and they get jealous. Managerial work is more respected than walking the floor, and some managers may believe they are working harder for less. Managers want a piece of the pile of cash they see on busy shifts. Managers don't think about how the waitress is doing when the restaurant is slow. 

Waitresses look over the fence and see a manager with power and a salary; waitresses have neither. They may think that managers have it made; actually, I know some people take a pay cut to become managers. At least, it's a pay cut during the busy season. 

Employers are sometimes a part of the problem. There are employers who pay their management poorly because the managers perform FOH jobs, such as hostessing; the employer figures he can use waitress tip outs to pay the manager. Sometimes the problem is not a greedy manager; the problem is a cheap employer who worked tip outs into the manager's salary. It may also be a combination of the two. 

Anecdotes

* Knew a woman who had worked as a bartender. She and the manager worked behind the bar every night together, and at the end of the night they would split the tips. It never occurred to her that this was wrong. She was promoted to manager, hired a new bartender, and continued in the same vein. After the first night, her new bartender quit. "I just can't work for a manager who would take my tips." 

* I was surprised once, long time ago, to hear a manager tell an assistant manager, "If you need to take a table, just do it." ("Need" meant the restaurant was too busy, not "need" the money.) 

* The one time I was livid was when the hostess decided to take my table without telling me. Every time I checked on the table they had been taken care of. We were extremely busy so I didn't dwell on it. Later, the hostess told me, "Well, I did everything for your table so I'm just keeping the tip." Eff you, too. 

* To end on a positive note, an owner of a very small restaurant used to work shifts as a hostess. She said, "I will never take tips from my workers. If I am hostessing, you don't tip out. If an employee is hostessing, you tip her out." 

Managers Taking Tables

Ask the Waitress!

I work at a small restaurant in Connecticut. We don't usually get very busy so I'm almost always the only server on the floor. Recently, we've been getting busier but management has not hired anyone new or filled the schedule so sometimes my manager will take tables. She expects to be tipped accordingly. I have heard her talking badly about another server who did not tip her out. Is her expectation of tips warranted/appropriate?

First, happy for you that you are getting busier. I assume that, in general, that is a good thing.

Based upon what you wrote, I am also assuming that the manager plays hostess, and that servers tip her out each shift for her hostess duties. If she takes a table, she also keeps the tip from that table. Correct?

Expectation of Tip Out

I understand your frustration in having to share your tips while she gets to keep all of her tips AND your tip out. However, look at it from her viewpoint: she is playing hostess whether she has to take a table or not. Her tip out is part of her compensation for that role.

If you get so busy you can not reasonably take all of the tables, then she takes a table. That is extra work for her, so she keeps the tip on her table. From her perspective, it is not fair for her to work harder and have to give up her tip out.

So, my answer to your question is, Yes, it is warranted and appropriate that the hostess/manager expect to receive her tip out regardless of whether she has to take a table.

Talking Badly

It is grossly inappropriate that a manager "talk badly" about an employee working underneath her. An appropriate way to handle transgressions is to meet one-on-one with the employee to discuss the situation. The manager may present the rules, the employee may ask questions, and the bottom line will be the employee will comply with the rules or cease working there. But bad-mouthing an employee behind his or her back is unprofessional and unbecoming in a manager.

Getting Busier

I also understand what I perceive to be your frustration (unless I misinterpreted?) at working in a restaurant that is getting busier but additional people are not being hired, or waitresses are not getting more shifts as the restaurant gets busier.

Sometimes that is a hard call for management. If they hire new people, and the restaurant gets slower, then they have a bunch of hungry wait staff vying for shifts. If they schedule more waitresses on a shift and the restaurant is slow, somebody may get sent home. Personally, I would rather not come in than get sent home.


If you are getting busier because summer is coming, and this is a predictable situation, then perhaps management should hire seasonal employees. If you are getting busier because people are discovering your wonderful restaurant, then eventually management will need to hire. This is not a bad thing!

The manager being willing to take tables at this time may even be a good thing for you. If you are taking as many tables as you can, and the manager just takes the extra, then you are working hard and making money. Splitting the restaurant with another waitress may not be as desirable, but that is a matter of opinion.

In the end, the situation you described above sounds appropriate to me.

Thanks for Asking the Waitress!

Guest Post by Diane Carlisle: Working for Mom

I am so pleased to have fellow blogger Diane Carlisle compose the post for today! When she says she worked for her mother, she does mean in her mom's "family-owned" restaurant. Her blog, Are We There Yet?, is on my blog list in the left sidebar.

Biography

Diane Carlisle is a software developer who enjoys writing, photography, boating, and online gaming. She has written and published two short stories, Lethal Injection, The Seed and Snow Leopard, both available at her author page, D.S. Carlisle. She is the author of Are We There Yet? A personal blog about making progress in her journey toward publication.



Working For Mom – The Pros and Cons of Working For Your Mother

won’t lie to you. I hated working as a waitress and bartender when I was just out of high school. Attending college wasn’t difficult, but working for my mother while trying to keep my grades up was probably the most difficult job I ever had. Forget that my job was waitressing and bartending, which is frustratingly under-appreciated to begin with, always has been. Working for my mother made it near impossible. So, if you ever work in a family run business, know this. Favoritism may be what you see from your perspective, but here’s a little of what really goes on.

Pros

1.     You’re not likely to lose your job. Why? Because your mother doesn’t want to have to support you if you can’t find another one. You might get fired for intentionally dumping an ashtray on the obnoxious drunk who frequents the establishment on a daily basis, but you’ll get hired back the next morning when your mother finds out the reason you did it was because he’d called you a whore.

2.     When your mother isn’t around, you are the boss, by association, even though you’re only nineteen. Everyone who works there will listen to you as if what you say goes, even the 50 year old cook in the back.

3.     All of your meals are free. That’s because your mother feels guilty because she doesn’t cook at home anymore. We’re all at the restaurant 24/7 and there’s a stove, a grill, a fryer, and FOOD.

Cons

1.     You don’t get regular pay raises or Christmas bonuses like the other workers. The other workers have families to support and need the money. You’re just a college student trying to make a little extra cash. Word.

2.     You get to give Joe Drunk a ride home because he drank too much. Do you think any other employee would be put at such a risk? Oh, the liability! No problem, I’ll get one of my daughters to drive the drunk home. Um, how about we just cut the guy off before he’s had too much to drink? Oh, that’s right; we’re here to make money. But wait, I’m only making minimum wage. What about hazardous duty pay?

3.     Your promotion to management doesn’t include a pay raise. You’ll just get a name tag with the title “Assistant Manager” on it so the others will recognize you as the Chosen One. You’ll also get all the accountability when the rest of the jealous workers stop doing their jobs.

4.     You get to close out (by yourself) a thousand dollars worth of cash to carry home in a bag at 2:30 a.m. while the club next door is in full swing.

So there you have it.  In the voice of Paul Harvey, “The Rest of the Story.”

Favoritism

My last post, Our Bar is in Desperate Need of Help, discussed some of the ins and outs of determining how to figure fair tip outs. The issues brought up by my "Ask the Waitress" reader were numerous and complicated. One of those issues was blatant favoritism.

To reiterate:

The new manager brings in his ex-girlfriend as our new waitress. He also institutes rules that make our bar consistent with other bars (i.e. waitress orders drinks and pays the bartender for those drinks). So now, we are doing everything. All the things we were doing before (cleaning, stocking, dishes, inventory, closing the register) as well as making all her waters, sodas, opening beers (everything a bartender normally does for a waitress). She is a real go getter, which is great. The customers are getting good service most of the time.  

She does nothing to help with the upkeep of the bar. She comes in, makes money and leaves. Everything is our job.

The new bar manager is quick to jump to her side and will only allow us to receive 3% of the tips she claims to make. She had to help me bar tend one night and I caught her hiding tips that we were supposed to share 50/50 in a drawer. There is no way to determine how much she makes and when we bring up that incident, he is quick to dance around the subject and come to her defense. 

She intercepts customers on their way to the bar and as a result, our income has been cut in half. If someone starts a tab at the bar, and orders ONE drink from her, we are forced to give her the tab and miss out on everything but still do 80 percent of the job because she is merely relaying a message. We have been having great busy nights where we don't make any money behind the bar, and her tip out is less than five dollars. 

What should we do about the favoritism and blatant theft that is being ignored? we love this bar and our owner, but every time we bring any of this up, we just look like we are complaining and being greedy.

There is a saying, "Don't dip your pen in the company ink." This bar manager brought in his own ink well. 

Fellow blogger Diane Carlisle  has experience in the restaurant industry. Her daughter is currently walking the floor in the trenches with the rest of us. Diane had wise words to share in the comments section of my last post; I share some of them here and encourage you to visit the post read everything she said in context.

I hate it that wait staff and bartenders have to deal with this sort of thing. My daughter is a server and she does pretty well where she is, but things can get petty, and then things can get just out right criminal. 

 When you are talking about someone's livelihood, if you're the owner, you have a responsibility to address these concerns.  

Let's just say this is my daughter who is having issues as a bartender, such like the waitress is stealing tips. Call a grievance meeting with the owner and manager. The manager is accountable to the owner, and if they owner doesn't know what's going on, it won't get resolved.  

If after the owner has been confronted along side the manager, things don't change, start looking for another job. 

... there are people out there who favor one over another. It's not professional and it certainly isn't healthy.

 And later in the conversation:

There are so many business owners who operate inefficiently because they rely on "experts" who are not qualified to run their business.

She said it for me. :-) 

One of my lawyer friends specializes in employment and labor law. His favorite thing to say is, "It's not illegal to be an a$$hole." It's not. 

Blatant favoritism is not against the law. Business owners may hire and fire whomever they wish to work for them. So, if you get fired and replaced with somebody's nephew, you don't have a legal complaint. 

Nobody is getting fired (yet?) in this bar, but there is blatant favoritism that is unfair. Problem is, it is not illegal. Which leaves the wait staff a few choices: 

1 -- complain to the owner. 

2 -- suck it up and make less money. 

3 -- quit. 

Diane's words were wise: she mentioned requesting a meeting with the owner (and maybe the bar manager at the same time, if you think that will work.) Personally, I am not always comfortable with confrontation and would likely sugar-coat if the bar manager were present in the initial meeting. Just make sure when you have a meeting that you remain calm and give specific examples of the behavior you would like to see change. 

"The bar manager and new waitress are poo-poo-heads" will not get you very far. 

"I believe we should implement a system of tipping out based upon sales to keep us all honest" is better. You can mention that you saw the waitress hiding tips; she will deny it. 

"The bartender income has dropped since the new policies have been implemented." 

"We would like to go over side work duties in an attempt to make them fair for everyone." 

"We feel unable to discuss behavioral issues with the bar manager because of his tendency to always side with his former girlfriend. We would appreciate your (the owner's) objectivity and looking into this situation." 

Diane said it best: an employer has a responsibility to his staff to deal with interpersonal and economic issues that arise. If he refuses, he deserves to lose his staff. Which brings me to one more point for today: 

Friendship

I got the impression from my reader's post that everybody who was initially involved in the opening of this bar/restaurant was family and friends. Perhaps my reader is friends with the owner, and this is complicating her or his ability to confront and owner and offer valid and legitimate complaints? 

Don't let it. Friends respect each other's boundaries. Friends can disagree with each other. Friends don't expect friends to put up with being mistreated, or come to work and make no money. Friends don't stop being friends because you make a professional decision to not work somewhere anymore. 

The situation as described is untenable and unprofessional. If the bar and manager and his girlfriend don't treat bartenders appropriately, then they can handle all of the work by themselves because the bartenders will cease to work there. 

Our Bar is in Desperate Need of Help

Received a long letter from a reader that began: 

My question comes in the form of a story, but our bar is in desperate need of help.

This is no exaggeration. Here is the story:

Our owner opened the bar as a second job and we have been open for almost a year. Business is booming and the bar is doing well. I have been working there for about six months. For the first few months of my employment, we had three bartenders, but for the last few months, there have only been two of us. We feel married to the bar and practically run it ourselves (with kind guidance, of course).

Our boss has employed his two daughters as waitresses for this whole time.. which has been nice. We've had no problems and life has been easy going. His daughters have become tired with working at the bar because they have day jobs and have only been working to help out their dad. Their whole family is exhausted, so he outsourced for help. He hired an experienced bar manager, who then hired a waitress (with whom he has a thick history). With new management as well as employees, naturally, the dynamics of the bar and rules have changed. 

To shed a little light on the changes, I'll explain how things worked before, then explain how they are beginning to work now.

Before:

The owner's daughters used to come behind the bar and to get their own beers and work the register. They were trusted, and there was no issue with them doing all these things for themselves. The other bartender and I made all their cocktails and did the cleaning/dishes/stocking/etc. They did not tip us out because they did the majority of their own leg work and we received enough business behind the bar to keep us all afloat. Sometimes things would get a little crowded, but we were enough of a team to make it work.

Now: 

The new manager brings in his ex-girlfriend as our new waitress. He also institutes rules that make our bar consistent with other bars (i.e. waitress orders drinks and pays the bartender for those drinks). So now, we are doing everything. All the things we were doing before (cleaning, stocking, dishes, inventory, closing the register) as well as making all her waters, sodas, opening beers (everything a bartender normally does for a waitress). She is a real go getter, which is great. The customers are getting good service most of the time.  

She does nothing to help with the upkeep of the bar. She comes in, makes money and leaves. Everything is our job.

The new bar manager is quick to jump to her side and will only allow us to receive 3% of the tips she claims to make. She had to help me bar tend one night and I caught her hiding tips that we were supposed to share 50/50 in a drawer. There is no way to determine how much she makes and when we bring up that incident, he is quick to dance around the subject and come to her defense. 

She intercepts customers on their way to the bar and as a result, our income has been cut in half. If someone starts a tab at the bar, and orders ONE drink from her, we are forced to give her the tab and miss out on everything but still do 80 percent of the job because she is merely relaying a message. We have been having great busy nights where we don't make any money behind the bar, and her tip out is less than five dollars. 

HELP! should tip out be determined from her sales or tips? and what is the proper percentage? What should we do about the favoritism and blatant theft that is being ignored? we love this bar and our owner, but every time we bring any of this up, we just look like we are complaining and being greedy.

Wow. I'm curious to know how many readers are out there, nodding their heads and thinking, "Been there, done that." I wish these types of problems were less common.  There are a lot of issues and questions in this letter; I will do my best to break them down into "bite-size" portions. ;-)

Tip Outs 

The dishonesty and downright theft described above is the very reason why many restaurant owners and managers have a policy that wait staff pay a percentage of sales to bartenders and bussers. When you allow servers to tip out based upon claimed tips, you open the door to dishonesty. Know anybody who cheats on their taxes? It's similar.

Waiters and waitresses who tip out less than they should sometimes rationalize their behavior. I've known many an entitled waitress who would complain "the host/busser/bartender/whoever didn't do very much for me tonight" and use this as a reason to skim off the top of the tip out. The problems with this attitude are fodder for many a blog post, but the short answer is to nip it in the bud and require tip outs based upon sales, not tips received. Which begs the question: what percentage of sales should be paid?

Percentage of Sales

If my math seems off, please feel free to correct me. If I am thinking and calculating clearly, this should make sense:

Let's say that the waitress is told to tip out 10% of her tips.

She received 20% of her sales in tips from customers.

SO: She sold $1,000 worth of food and beverages.
She made 20%, or $200.
10% of $200 = $20.
2% of $1,000 = $20.

The waitress is told to tip out 2% of her sales.

The problem here is that servers don't always make a full 20% on each table. But this is what you get for lying about your tips.

Each restaurant will have it's own set of numbers. I have worked as a bartender and received 4% of drink sales as my tip out. I also took diners at the bar. Being stuck behind the bar, I did not help with anything other than bar duties: glasses, restocking, cleaning. And I would need a little help clearing my "tables," so I felt the tip out was fair. If I wasn't busy, I would pour sodas and such for the waitresses, but if I was swamped they were able to get those themselves.

There is a lack of regulation governing how much waitresses must tip out; I personally would advise anybody paying out more than 20-25% of their tips per shift to keep their eyes open for other opportunities.

There is a lot more here that I will cover in the next posts. We need to talk about:
* blatant favoritism
* how and to whom to complain
* lack of regulation.

In the meantime, I hope that helps some.